Saturday, September 28, 2013

Saira Mohamed (Univ. of California, Berkeley - Law) has posted Shame in the Security Council (Washington University Law Review, forthcoming). Here's the abstract:

The decision of the U.N. Security Council to authorize military intervention in Libya in 2011 was greeted as a triumph of the power of shame in international law. At last, it seemed, the usually clashing members of the Council came together, recognizing the embarrassment they would suffer if they stood by in the face of an imminent slaughter of civilians, and atoning for their sins of inaction in Rwanda, Bosnia, and Darfur. The accuracy of this redemption narrative, however, is open to question. Shaming — an expression of moral criticism intended to induce a change in some state practice — is assumed by scholars and practitioners to be a powerful force in international law generally and in the context of humanitarian intervention specifically. In the first study of the operation of shame in humanitarian intervention, this Article tests that assumption.

Grounded both in the promise of sociological approaches to international law and in the reality that states cling dearly to the power to use military force, this Article offers insights on Security Council members’ responses to the dire situations that most demand their action. After providing a definition of shame as it applies in international law, a crucial piece of analysis that has been missing from this area of undertheorized assertions and unexplored assumptions, this Article argues that shaming efforts vary according to four dynamics: the influence of the agent of shame, the subject of the shame, the attention of audiences other than the agent of shame, and the repeated interactions of the Council’s members. Based on this analysis, the Article suggests how states, international organizations, and civil society groups can best deploy the unexpectedly fragile tool of shame in the context of humanitarian intervention. In place of blind reliance on shaming sanctions, efforts should focus on generating the conditions that foster more effective use of shame as one of the vanishingly few — and thus critically important — means of encouraging effective responses to humanitarian crises.

This conference will examine the legal issues arising from the tribunals convened in Asia to deal with crimes of international import — namely, aggression, war crimes, genocide, and crimes against humanity. It will consider both tribunals that have been established on the initiative of Asian governments and tribunals mounted in Asia at the behest of non-Asian governments or international organisations. In keeping with the legal theme, it will lay particular stress on the different modes of liability developed within these courts’ respective jurisdictions — among them, joint criminal enterprise, command responsibility, complicity, and defences against them.

Over a seven-decade time-span, many tribunals have been convened in the region, from the earliest, established in Manila and Tokyo after the Second World War, to the latest, currently hearing cases in Phnom Penh and Dhaka. During the intervening years, lesser-known trials were also mounted by the colonial powers in Singapore, Hong Kong, Batavia, Saigon and elsewhere; by the Guomindang and People’s Republic of China in the early Cold War period; and by the Vietnamese authorities after Khmer Rouge rule in the 1970s. Beyond the historical-political analysis, the conference aims to draw substantive conclusions about the legal legacy of these tribunals, and appraise the mechanisms evolving in Asia today, either at the ‘hybrid’ internationalised tribunals or within national systems.

The article examines how the law of cyber warfare may evolve in response to the growing centrality of cyber activities to modern life. Drawing on the extant law as set forth in the Tallinn Manual on the International Law of Cyber Warfare, it focuses on the principle of sovereignty, the jus ad bellum, and the jus in bello.

Global warming is perhaps the ultimate crisis for humanity. But is it a crisis for international law? How has crisis framing influenced the development of international climate change law? Elements of a ‘crisis model’ can be identified in international responses to climate change, but they have transcended it and are evolving in much more complex and textured ways. On one hand, the continuous pressure for urgent and exceptional action at the multilateral level has lead to acrimony between states, indifference and denial among important constituencies, and ultimately to weak arrangements within conventional intergovernmental models. This has produced an impression of constant failure which in itself poses a challenge to the normative capacity of traditional international law-making. On the other hand, crisis framing has been a catalyst for developments in international law in unintended ways. It has legitimated ‘bottom-up’ approaches and sub-global and unilateral action, as well as localized legal responses. It has lead to sophisticated yet plausible reconciliations between climate concerns and international trade. It has promoted reconsiderations of hard policy choices, such as between mitigation and adaptation. International law’s climate change agenda has broadened, not narrowed, and it has shown a considerable capacity to innovate and develop, presenting new opportunities for international law’s functions and modalities.

Recent scholarship in international law – for example, recent books by Mary Ellen O’Connell and Michael Scharf – relies on the idea of a “Grotian tradition” or of “Grotian moments” to provide normative foundations for significant parts of the contemporary international legal system. Despite the significant value of this scholarship, the underlying claim of a Grotian tradition is deeply flawed. The Grotian tradition itself was invented by mid-twentieth century scholars such as Hersch Lauterpacht to serve the goals of post-war liberal internationalism. There is no reason to believe that there is any more longstanding and normatively attractive tradition of engagement with the ideas of Hugo Grotius in international law and/or international relations. Indeed, many of the foundational ideas of Grotius’s own system of international law are deeply at odds with liberal or progressive approaches to contemporary international law.

“What Is the Grotian Tradition in International Law?” examines the claims made by and on behalf of the Grotian tradition and exposes the ways in which it fails to match up with the actual life and writings of Hugo Grotius. The article historicizes Grotius to demonstrate that much of his work – as propagandist, government official, attorney for the Dutch East India Company, and author of The Law of Prizes, The Free Sea, and The Rights of War and Peace – functioned to legitimate a violent and imperial conception of international law that served the interests of a simultaneously vulnerable and expansionist Dutch Republic. The result is not simply that the Grotian tradition is a fraud, or that Grotius is an inapt figure for any desirable conception of international law. Even more, a behind the scenes account of the Grotian tradition serves as a cautionary tale: international legal argument and international legal theory should reject the effort to claim deep historical foundations for the goals associated with liberal and progressive approaches to international law. A more self-conscious and critical stance holds out far better prospects of advancing those goals.

A call for papers has been issued for the 2014 Frankfurt Investment Law Workshop, which will take place March 14-15, 2014, at the Goethe-Universität Frankfurt am Main. The theme is: "International Investment Law and the Global Financial Architecture: Sovereign Debt, Taxation and Financial Market Regulation." Here's the call:

CALL FOR PAPERS

International Investment Law and the Global Financial Architecture:

Sovereign Debt, Taxation and Financial Market Regulation

– Frankfurt Investment Law Workshop 2014 –

Goethe-Universität Frankfurt am Main, 14 and 15 March 2014

Recent years have seen governments around the world re-regulate (or consider re-regulating)
markets in response to financial, banking, and sovereign debt crises. Re-regulation has been most
clearly felt in the banking sector, but has also affected, amongst others, capital markets, rating
agencies, and cross-border finance. All of this takes place in order to stabilize financial markets and
to reduce the exposure of governments and central banks, but also supranational and international
institutions (such as the International Monetary Fund, the European Central Bank, or the European
Stability Mechanism) as lenders of last resort. Accordingly, the crises also involve serious concerns
about public finance, including sovereign debt and taxation, monetary and fiscal policy, and
sovereign insolvency. Government activities as regulators of, but also participants in, global financial
markets therefore move center stage – and with it questions about the role of international
investment law in the current reorganization of the global financial architecture.

The 2014 Frankfurt Investment Law Workshop, which will take place on 14 and 15 March 2014
immediately following the Frankfurt Investment Arbitration Moot Court, attempts to explore this
role. Invited papers will address the interaction between international investment law and financial
market and banking regulation, free flow of capital, public finance, taxation, sovereign debt, and
monetary and fiscal policy. Through this Call for Papers, we invite paper proposals on related topics,
both doctrinal and inter-disciplinary. For example, papers could deal with any of the following
questions:

the impact of financial crisis on investment treaty obligations,

the impact of investment law disciplines on banking and capital market regulation, including
offshore, sovereign debt restructuring and sovereign insolvency, public finance, monetary
and fiscal policy, or taxation,

the role of investment treaty tribunals in reviewing such measures,

or the role of international and supranational institutions in the field.

Submission of Proposals and Timeline

Original and non-published submissions from both junior and senior scholars and practitioners are
invited on the themes outlined above. An abstract of max. 800 words and the applicant’s CV should
be sent (in .pdf or .doc format) to filw2014@mpil.de by 10 November 2013. The abstract must
include a statement of the issue area of the paper, as well as an indication of the major arguments to
be made, a title, and contact details.

A selection panel will consider all abstracts and notify applicants of acceptance by 30 November
2013. Full papers have to be submitted by 28 February 2014. Following the workshop, they will be
published, subject to a peer review procedure, in the newly established Frankfurt Investment and
Economic Law Series (Elgar Publishing). The sponsoring organisations will cover the speakers’
travelling and accommodation expenses.

We live today in the first global system of sovereign states in history, encompassing all of the world's polities, peoples, religions and civilizations. Christian Reus-Smit presents a new account of how this system came to be, one in which struggles for individual rights play a central role. The international system expanded from its original European core in five great waves, each involving the fragmentation of one or more empires into a host of successor sovereign states. In the most important, associated with the Westphalian settlement, the independence of Latin America, and post-1945 decolonization, the mobilization of new ideas about individual rights challenged imperial legitimacy, and when empires failed to recognize these new rights, subject peoples sought sovereign independence. Combining theoretical innovation with detailed historical case studies, this book advances a new understanding of human rights and world politics, with individual rights deeply implicated in the making of the global sovereign order.

This book addresses the diverse ways in which international law governs the uses, management, and protection of fresh water. The international law of fresh water is most comprehensively understood in the light of the different bodies of norms applicable to these varied uses and functions.

The regulation of fresh water has primarily developed through the conclusion of treaties concerning international watercourses. Yet a number of other legal regimes also apply to the governance of fresh water. In particular, there has been an increasing recognition of the importance of fresh water to environmental protection. The development of international human rights law and international humanitarian law has also proven crucial for ensuring the sound and equitable management of this resource. In addition, the economic uses of fresh water feature prominently in the law applicable to watercourses, while water itself has become an important element of the trade and investment regimes. These bodies of rules and principles not only surface in an array of dispute settlement mechanisms, but also stimulate wider trends of institutionalization.

The book investigates the origin and scope of these bodies of norms as they apply to fresh water, and demonstrates how they connect and adapt to one another, forming an integrated body of international principles. This approach is accompanied by a detailed analysis of the practice of states and of international organizations, taking into account the activities of the many non-state actors involved in the treatment of fresh water.

The significant increase in targeted killings by the USA under President Obama has led to growing demands for greater transparency about the legal justification for this controversial use of force. In response several members of the administration have recently made speeches about the legal rules governing targeted killing. This article will consider these speeches and identify some of the key questions that they have left unanswered. These include the nature of the relationship between Al-Qaeda and its ‘associates’, and the links of the various terrorist groups, if any, to the terrorist attacks of 9/11; the categorization of lawful targets; the role of the CIA; the scope and meaning of ‘imminence’; and the establishment and significance of host state consent.

The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes analyzes of the contemporary law of the sea and related areas of international law in Antarctica and the Arctic, with a particular focus upon the interaction of global and regional regimes.
The global component of the international law of the sea - principally the United Nations Convention on the Law of the Sea - applies to the entire marine domain in both polar regions but explicitly requires regional implementation or acknowledges its usefulness. This volume critically examines regional regimes for the Arctic and Antarctic on science, maritime security, fisheries and shipping by means of common research questions; thus enabling an overall synthesis and identification of trends, differences and similarities.

This article assesses the extent to which the enforceable framework of public international law regulates the exploitation of natural resources in conflict zones, especially in those situations where the incumbent governments claim to power is contested. The first part of the article is explanatory. It considers why despite the prevalence of civil wars in which natural resources has played a prominent role, the subject matter has been so neglected in mainstream public international law discourse. Thematically, two main sources of this institutional reticence may be identified. First, is the implication of international through doctrine that provided legal justification for some of the worst forms of exploitation during the period of colonisation and the continuing existence of relationships of subordination in international institutions. A second source of reticence is international laws preoccupation with the state as the primary actor. As a result, the activities of insurgent groups and multinational corporations, increasingly significant actors in natural resource exploitation are largely beyond the existing regulatory frameworks. The second part of the article evaluates the emerging regulatory regimes that attempt to circumvent the state-centric mechanisms of public international law by imposing obligations directly on multi-national corporations. The article assesses the efficacy of national initiatives of this kind and the inevitable problems of normative conflict if different states and regions embark on uncoordinated unilateral measures of regulation. The final part of the article assesses the decisions taken by post conflict governments in the Democratic Republic of Congo and Liberia to review or annul resource exploitation agreements concluded during the period of civil war. These decisions, it is suggested, challenge the prevailing theory that a change of government as such does not affect the continuing validity of agreements previously concluded.

This book traces the impact that the International Court of Justice (ICJ), the principal judicial organ of the United Nations, has had on various areas of international law. A number of prominent international experts examine whether, and to what extent, international law has been shaped by the Court's jurisprudence. The informal development of international law through the Court's judgments contrasts with the development of international law through more deliberate means, such as treaty-making. Assessing key areas of international law over which the ICJ has exercised its jurisdiction, such as international environmental law, international human rights, the law of the sea, and the law of immunities, this book comprehensively details the impact of international jurisprudence on contemporary international law.

Two subjects are now on the agenda: how to make the Bretton Woods institutions (i) more effective, so that they can successfully face the challenges of development gaps (World Bank) and crisis prevention and management (IMF) and (ii) more democratic and less opaque, so that all their members and stakeholders can have a voice in and be represented, be they large or small, wealthy or not.
The two organizations will be examined simultaneously, because of the perfect symmetry in their governance structures, of their links (shared memberships, contextual agreements), and of the complementarity of their missions.
This book will examine their governance systems and above all what I reckon is the core issue: their decision-making process. My analysis is based on the firm belief that the decision-making process affects the efficiency and also – indirectly – the outcome of the international organizations’ decisions. In other words, the governance systems are bound to influence and shape the results of the actions of the international organizations themselves.

There is no formal binding precedent in international law. Yet, as this article demonstrates, countries nonetheless expend considerable resources in seeking to shape legal precedent. Looking at the international trade regime, I show that while some disputes are initiated to gain market access in response to domestic interests, others are filed primarily to build favorable precedent for future cases of greater commercial value. I construct an original dataset consisting of the network of all rulings spanning the WTO period, and the cases they cite. I analyze this network to provide systematic evidence for the existence of "test cases" in international law: countries initiate commercially unimportant disputes to shape legal precedent to their advantage. And wealthy countries with high legal capacity are significantly better able to do so. While the existence of binding precedent in international law remains a point of continuous debate, countries observably behave in a manner consistent with its existence.

Different activities conducted by armed forces and their personnel are governed by different branches of international law, in particular international humanitarian law, international criminal law and human rights law. In recent times, the growing number and jurisprudence of international jurisdictions have also addressed the activities of military personnel engaged in different scenarios, including the internal organisation of armed forces and forms of violation of different rules of international law. Relevant decisions include, for instance, the international ad hoc criminal Tribunals, special courts, and truth and reconciliation commissions, as well as human rights courts and the International Court of Justice.

An analysis of any particular decision of the International Court of Justice sometimes misses broader, cross-cutting themes that animate the Court’s jurisprudence. This essay, prepared for an April 2013 symposium at the European University Institute, Robert Schuman Centre for Advanced Studies, in Florence, explores a few of the themes that emerged from the Court’s 2012 jurisprudence. First, notwithstanding the development of treaty regimes across a broad array of international law, there remains an enduring relevance of customary international law and general principles of law as sources of international law. Second, when identifying rules of customary international law, there is an enduring attraction to analyzing the effects of multilateral treaties in codifying or crystalizing customary rules, rather than relying on a classic analysis of the day-to-day practice of States in conjunction with their opinio juris. Third, the concept of jus cogens remains a powerful feature of international law, available in theory to trump a State’s ability to engage in contrary treaties, yet in practice the concept seems to get little traction; certainly, violations of jus cogens have proven unable to open the door to claims before national and international tribunals. Finally, international law has increasingly become attuned to the rights of persons as against the power of States and international organizations, but the traditional processes of international law pose difficult and sometimes insurmountable hurdles to persons in effectively vindicating those rights.

The Court’s jurisprudence highlights areas of international law that are incomplete or unsatisfactory. The ICJ’s role is not to legislate solutions in those areas, but the Court’s decisions point the direction for changes that might be pursued, either through the development of new treaties or institutions or improvements to those that already exist. Consequently, this essay concludes by suggesting some implications for the future codification and progressive development of international law.